International Law - Legalism

Legalism—the tendency to profess legal grounds for U.S. foreign
policies—is a second core belief underpinning the American
ideology. The inclination to embrace legalism springs from rejection of
the balance-of-power approach as the means for preserving U.S. national
security and from the liberal assumptions that people are rational human
beings who loathe war and prefer the peaceful settlement of disputes. In
modern times U.S. foreign policy clearly contributed to the creation of a
global system of institutions and legal rules that allow states to settle
their disputes without resource to use of force. This legalism perspective
is well embodied in active U.S. participation in international rule-making
and in the multitude of contemporary international institutions that the
United States has joined and in great part has been responsible for
establishing. Paramount among these is the United Nations, which was
envisaged through the political initiative of the United States at
Dumbarton Oaks in 1944 and San Francisco in 1945. The United States was
also the main architect for designing and negotiating the International
Bank for Reconstruction and Development (the World Bank) and the
International Monetary Fund to reconstruct the post–World War II
international economic order. From 1987 to 1994 the United States assumed
the leading role in negotiating the World Trade Organization, which
effectively rewrote the 1947 General Agreement on Tariffs and Trade in an
effort to provide legal rules, inclusive of mandatory dispute settlement,
for international commercial transactions. At the end of the twentieth
century the United States assumed an intensely active internationalist
role as it participated in more than one thousand intergovernmental
organizations, most of which were conceived through U.S. political
initiatives and were sustained with substantial U.S. financial support. In
this regard it is critical to appreciate that nearly all of these
international organizations were empowered to negotiate and create new
legal rules, both for internal administration and as international
regulations. As a global superpower with worldwide interests, the United
States remained intimately involved in that norm-creating process through
these global institutions.

For the United States, the rule-making facet of legalism rests in the
critical legal principle of a government pledging its willingness to abide
by international agreements to which it has voluntarily committed itself.
This legal principle, known as
pacta sunt servanda
and drawn from the domestic practice of contract law, asserts that
treaties made in good faith between governments are binding. While no
meaningful police or judicial mechanisms are available to enforce
international agreements, state practice clearly indicates that all
governments, including the United States, overwhelmingly abide by their
treaty obligations for two fundamental reasons: first, it is in their
national interests to do so; second, abrogation of treaty commitments
absent legitimate justification deprives a government of its political and
legal credibility with the rest of the international community. The United
States, like all states, honors its treaty obligations principally because
those rules benefit American foreign policy interests. To spotlight this
point, in 2001 the United States was party to more than five thousand
international agreements, of which more than five hundred were prominent
multilateral conventions. If treaty-based legal rules were nugatory for
U.S. foreign policy, why pursue the painstaking political effort to
negotiate, ratify, and consolidate such an impressive array of
international instruments into legally binding obligations? The answer is
plain: international legal agreements are not worthless. These rule-making
documents well serve U.S. national interests, and upholding their
obligations provides the United States with greater constructive
opportunities and legal latitude in its relations with other states.

Legalism places heavy burdens on U.S. foreign policy, especially when
considerations are given to the use of military force internationally. By
rejecting the power-politics approach, policy-makers cannot assert
national security self-interests as the only justification for engaging in
armed conflict abroad. Instead, U.S. foreign policy actions may be dressed
in legal principles to explain the bases for those decisions. Several
examples demonstrate this pronounced tendency to justify the grounds for
military action in legal terms, including resort to using the United
Nations as an umbrella of legitimacy to prosecute the Korean War in 1950
and the Gulf War in 1991, citing a request by the Organization of Eastern
Caribbean States as partial legal justification for the 1983 invasion of
Grenada, and use of NATO to sanction the lawfulness of U.S. action in
Bosnia in 1994–1995 and in Kosovo in 2000.

The American resort to legalism contains a proclivity toward moralism.
Moralistic assertions may be used to explain how international legal rules
and institutions are integrated into U.S. foreign policy outcomes. This
American sense of morality in its international relations rests on two
presumptions. First, the belief persists that the conduct of states can be
judged by moral standards. Second, there is the assumption that American
morality supplies the universal standard for making those judgments. By
definition, American foreign policy actions are presumed morally right and
legally justifiable. Thus, when flawed policy initiatives occur, they are
not attributed to "American" values that guide the policy
action. Rather, such fallacies are rationalized as resulting from
leadership deficiencies, information failures, bureaucratic
miscommunications, or organizational lapses.

Americans often justify political goals and foreign policy actions in
moral terms and evaluate outcomes of events through a prism of moralistic
values. This occurs when the government seeks to explain to the American
public why foreign assistance for some state might be necessary. Numerous
examples of such cases can be found during the Cold War, as the United
States often asserted moral principles to justify aid to prodemocratic
governments aimed at suppressing communist insurgencies in Greece in 1947,
Lebanon in 1958, the Dominican Republic in 1965, El Salvador in
1981–1984, and Grenada in 1983. One might also add the decision to
send military and food aid during the widespread famine in Somalia in late
1992. U.S. participation in massive refugee relief efforts similarly rests
on pillars of moral values, well illustrated in the tragedies that gripped
Bosnia (1992–1994), Burundi (1993), Rwanda (1994), and Kosovo
(2000).

Idealism, or the vision that advocates that international peace is
desirable and possible, also remains salient as a theme in American
legalism. American idealists believe that violence and conflict represent
human failures that can be overcome through education. Idealists find
clear, accepted moral values in international agreements such as the
United Nations Charter and the Universal Declaration of Human Rights. They
are closely aware of moral claims by other governments and tend to
advocate greater access for peoples in other countries to civil rights and
liberties, health care, housing, and education. Idealists emphasize the
importance of applying the principle of self-determination in U.S. foreign
policy to peoples abroad and are more likely to advocate multilateral than
unilateral action in world affairs. The integration of idealism with
legalism's proclivity for establishing institutional structures
served as the catalyst for the United States—through President
Woodrow Wilson—to assume the leading role in establishing the
League of Nations in 1919 and for supporting the United Nations in 1945.
Idealism also fostered the rapid promotion and acceptability of human
rights law in U.S. foreign policy programs and treaty commitments.

U.S. foreign policy at times assumes an approach of idealistic legalism to
seek means of attaining international peace and cooperation. Such
ambitions are seen in the nation's leadership in several
disarmament conferences throughout the twentieth century, among them the
Hague Peace Conferences of 1899 and 1907, Washington Naval Conference of
1922, Geneva Conference of 1922, London Conferences of 1930 and 1935, and
Kellogg-Briand Pact of 1928, in which sixty-two contracting parties,
including the United States, renounced the use of war as an instrument of
national policy.

Idealism furnishes the bedrock of international humanitarian law, which
governs the use of armed force and the treatment of individuals during
armed conflict. International humanitarian law is designed to reduce and
limit suffering of individuals in war. It thus extends the principles and
protections of human rights to the rules governing armed conflict. In
substantial part, such international humanitarian law is the product of
U.S. foreign policy. In 1907, the Second Hague Peace Conference adopted
Hague Convention IV, Respecting the Laws and Customs of War on Land, which
remains the core legal statement on the law of land warfare. These
regulations originated in the code of principles set out in 1863 by
Francis Leiber, a U.S. physician during the American Civil War, to provide
Union troops with rules of conduct on the battlefield. In reacting to the
horrors of World War I, the United States in 1929 played a pivotal part in
drafting two Geneva conventions that codified protections for prisoners of
war and ameliorated conditions of sick and wounded soldiers in the field.
The experiences of World War II reaffirmed the need to broaden the 1929
accords, and in 1949 in Geneva four major conventions were adopted that
codified more comprehensibly legal rules for the protection of victims of
war. Although drafted under the aegis of the International Committee of
the Red Cross, the United States assumed the lead role in revising and
developing these agreements, which dealt with the wounded and sick in the
field and at sea, treatment of prisoners of war, and the protection of
civilians. The four Geneva conventions of 1949 represent the most
important codification of international humanitarian law protecting armed
forces and civilian victims of armed conflict. As such they have been
ratified by virtually every state in the world.

Idealism also underpins modern international criminal law, the main goal
of which is to make accountable persons accused of committing atrocities
and gross violations of human rights law. International criminal law
descends substantially from American jurisprudential values and U.S.
foreign policy initiatives. The trials in 1945 by the International
Military Tribunal at Nuremberg, which prosecuted twenty-two German Nazi
officials for committing acts of genocide, crimes against humanity, war
crimes, and crimes against the peace during World War II, were innovations
of and productions by American lawyers. So, too, were the Tokyo War Crimes
Trials during 1947–1948 that prosecuted Japanese war leaders and
industrialists. In reaction to "ethnic cleansing" in Bosnia
during 1992–1993, the United States diplomatically steered the UN
Security Council into the May 1993 establishment of the International
Criminal Tribunal for the Former Yugoslavia (the Hague Tribunal). With
U.S. diplomatic and financial support, this court emerged as a credible
institution for investigating, prosecuting, and punishing persons accused
of committing genocide, crimes against humanity, and war crimes against
persons in the former Yugoslavia (mainly Bosnia). By 2001 the Hague
Tribunal had publicly indicted one hundred persons for alleged atrocities,
and nineteen had been convicted. Among those in custody and being tried
was Slobodan Milosevic, former president of the Republic of Yugoslavia. In
1994 the United States again acted through the UN Security Council to
create a special tribunal to try and prosecute persons accused of
committing similar offenses in Rwanda. By 2001 the International Criminal
Tribunal for Rwanda had indicted at least fifty-five persons, had
fifty-one cases in progress, and found eight individuals guilty, including
former Prime Minister Jean Kambanda, the first head of state ever
convicted of such crimes. The United States also actively participated in
the 1998 Rome negotiations that produced the Convention for the
International Criminal Court. Ironically, while this instrument was the
product of considerable American jurisprudential influence, the U.S.
government continued to have strong reservations about the convention
text. In particular, American objections centered on the fact that no
provision existed for the United States to veto in the Security Council a
particular case coming before the court and the possibility that U.S.
troops abroad might be made subject to the court's jurisdiction on
trumped-up charges.

Idealistic traits in U.S. foreign policy have generated support within the
American public for humanitarian military intervention in situations where
gross human rights atrocities or flagrant acts of genocide are
perpetrated. Led by the Clinton administration, from 24 March to 10 June
1999, NATO conducted an air campaign against the Federal Republic of
Yugoslavia. NATO aircraft flew more than 38,000 combat sorties against
targets in Kosovo, Serbia, and Montenegro. Geostrategic and Realpolitik
concerns clearly motivated the United States to act, especially the belief
that ethnic conflict within Kosovo could destabilize the Balkans and
inflame tensions between Greece and Turkey. Criticism was leveled at the
Clinton administration for sketchy legal rationales proffered to justify
NATO's military attacks, which caused severe collateral damage and
civilian deaths. Nevertheless, strong evidence suggests that Serbian
forces were undertaking a wide range of human rights and humanitarian law
violations throughout Kosovo under the guise of "ethnic
cleansing." An estimated six to ten thousand Kosovar Albanians were
victims of mass murder, and more than 250,000 Kosovars were displaced and
forced to flee to Albania, Macedonia, and Montenegro. The Clinton
administration contended that a cardinal objective of NATO in its military
action was to deter Belgrade from launching an all-out offensive against
its own civilians. In this sense, the NATO bombing campaign took on the
character of a humanitarian intervention, motivated by both moral and
idealistic concerns. Strictly speaking, the lawfulness of U.S.–NATO
action remains suspect because it was taken neither in self-defense to a
military attack by Serbia nor legitimized by the approval of the UN
Security Council. Still, it is reasonable to infer that the
U.S.–NATO action may have saved thousands of Kosovar Albanian lives
and might be considered an act of anticipatory humanitarian intervention.